The Federal Court recently confirmed that visa officers are under no obligation to provide any legal advice to applicants or to even reply to requests for such advice.
Not even when the applicant is a Buddhist monk.
In November 2001, Xungong Tong came to Canada to work as a religious worker.
By August, 2006 he had accumulated about $50,000 in savings and about five years of Canadian experience.
Tong filed an application for permanent residence as a skilled worker through our consulate in Seattle. To pass he would need to score 67 points.
In a letter to the consulate, Tong advised that he could get a permanent offer of employment from his employer and asked what kind of documents he needed to obtain a bonus of 10 points for “arranged employment.”
Rather than answering the question, the reviewing officer proceeded to assess the application and refused it, citing an insufficiency of points and a belief that Tong was unlikely “to become economically established in Canada.”
Tong cried foul and appealed to the Federal Court.
Unfortunately, the monk’s faith in this higher authority went unrewarded.
On Feb. 13, Mr. Justice Lemieux held that, “Generally, the onus is on applicants to provide all relevant information in support of their application. Second, visa officers are not in the business of giving legal advice.”
Essentially, if the good monk wanted an answer he could have checked with his legal advisor or looked it up himself in the regulations or in the departments’ operations manual.
Generally speaking, officers are not required to notify applicants of any concerns or apparent deficiencies. Applicants are free to submit whatever documents they want considered. The officers’ role is to simply review what is in front of them and determine if the application complies with the regulations. The courts have declared a few exceptions to this general rule. However, applicants should not ignore the general rule in the hopes that they will fall into an exception.
It’s unclear if these principles might still apply where a prospective applicant may have received bad advice from the departments call centre.
While the department denies any obligation to give legal advice, it nonetheless appears to be discouraging applicants from seeking such advice when it states in its application kits that if applicants choose to hire a representative they cannot expect “a more favourable outcome.”
In these circumstances, how can good legal advice not improve the likelihood of a favourable outcome?
Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Ontario Law Society as an immigration specialist. Reach him confidentially at 416-862-0000 or at metro@migrationlaw.com.
